17 Ekim 2010 Pazar

Constitution as a dictionary definition means “the system of fundamental principles according to which a nation, state, corporation, or the like, is governed”[1]. There is no doubt that a constitution is the primary institutional source of governing in a democratic regime. Constitutions are above all powers including legislation, execution and even jurisdiction because a constitution also regulates the relationship between these three separate powers. Constitutions are generally in the written way and are open to changes except for few untouchable articles. For instance according to 1982 constitution, the first three articles of Turkish constitution are protected by the fourth article of the constitution stating that “changes for first three articles are not even suggestible”. Constitutions could be unwritten and could exist in the form of precedent too. For instance, in United Kingdom although there is not a written constitution, all relationships between different powers are regulated according to precedents and everybody knows what and how to do.

There is no doubt that a constitution is one of the most important institutions for a democracy to be consolidated and deepened. A good constitution could create a healthy democracy whereas a bad constitution could create open spaces for authoritarian governments. Like Andrea Bonime-Blanc has mentioned constitution-making processes and constitutions could give us clues about the success potential and future of that regime[2]. In this paper, I am going to first talk about constitution-making process and then analyze Turkish constitutions comparatively by stating their major aspects and weaknesses. After analyzing all constitutions, I am going to talk about the problematic aspects of today’s constitution and I will suggest some changes that will deepen Turkish democracy.

Constitution-making process is in fact important as the constitution itself. It is often stated that there are two major ways of constitution-making. The first style is being consensual in constitution-making which suggests that all different political sides (including political parties, unions and civil society organizations) could sit around a table and could decide on highest political laws by starting from their common points. If problems arise, these are handled in the way that majority of the sides decide. The other way of constitution-making is being consociational which foresees power-sharing between cooperative but autonomous groups. The Italian constitution which was prepared after the Second World War is a great example of democratic constitution-making since all Socialists, Communists and Christian Democrats were sit around a table and decided on basic principles of their political system by achieving consensus. That is why Gianfranco Pasquino defines Italian constitution as a “great political monument”[3].

We should start analyzing Turkish constitutions comparatively by first looking at 1921 constitution although it was a product of National Struggle period. Important constitutional experts like Professor Ergun Özbudun and Bülent Tanör both admit that 1921 constitution had seen the most democratic constitution-making process that Turkey ever had[4]. During the National Struggle, Mustafa Kemal Atatürk was able to convene a new National Assembly in Anatolia by calling local representatives from all Anatolian cities. The first meeting was held in Ankara on 23 April 1920, a day that we celebrate as the “National Sovereignty and Children Festival”. One of the most important aspects of 1921 constitution is that it opens the way for a democratic republican regime by its famous article “Sovereignty belongs to the nation without qualification and condition”[5]. Another important aspect of 1921 constitution is that it suggested a system of the “fusion of powers” instead of “separation of powers” by giving all power to Turkish Grand National Assembly[6]. That is why 1921 constitution created a “parliamentary government”[7] which has executive, judicial and jurisdictional powers. It must be noted that 1921 constitution was a product of war times and that is why it should be absurd to wait the qualities of a developed democracy from it. For instance, 1921 constitution did not have a place for president of the state because Mustafa Kemal probably did not want to lose the support of pro-Caliphate and pro-Sultanate segments in the Turkish Grand National Assembly during the difficult times of National Struggle. However, after few years this first Assembly accepted the abolishment of Caliphate and Sultanate. The constitution was revised to reflect important changes that occurred when Turkey was declared a republic in 1923 and 1924 constitution was declared. We should say that 1921 constitution was an expression of the radical revolutionary transformation in the Turkish society by establishing the constitutional principle that the Grand National Assembly is the sole and true representative of the nation. For realizing this aim, it established an assembly government system in which all the powers of sovereignty were embodied in the parliament.

1924 constitution was the first constitution of the Republic of Turkey. It retained most of the basic principles of the 1921 Constitution, notably the principle of national sovereignty. Similar to the 1921 Constitution, the Turkish Grand National Assembly is considered to be the “sole representative of the nation”. According to 1924 constitution both the legislative and executive powers were embodied in the Assembly. However, 1924 constitution approached to a parliamentary democracy by giving the Assembly the power to supervise and dismiss the government although the government and the president did not have the power to dissolve the Assembly. Moreover, the judiciary was totally separated from the legislative and executive bodies and was given to independent courts on behalf of the nation. That is why 1924 Constitution can be characterized as a step toward a parliamentary system and separation of powers. However, one problematic aspect of 1924 constitution is the presence of an article stating that the “official religion of the state is Islam”, an article clearly against secularism and the secular spirit of the constitution itself. However, this article was later removed from the constitution and all six principles of Kemalism (Republicanism, Nationalism, Secularism, Populism, Statism-Étatism, Revolutionarism-Reformism) were later added into the constitution. It should be said that 1924 constitution was prepared for a single-party regime which would prepare the country for a pluralistic democratic regime. However, democratic transition in Turkey took place within the context of 1924 constitution which allowed Menderes-Bayar duo to establish an authoritarian system.

Before passing to 1961 constitution we should look at the reasons of 27 May 1960 coup which would explain us also the basic features of 1961 constitution. 27 May 1960 military intervention was made against the political elite’s abuse of political power by state elites. Democrat Party’s anti-democratic deeds like the establishment of investigation committees[8] by taking power from the single-party period constitution and the emergence of Fatherland Front (Vatan Cephesi) which clearly led to social fragmentation in the country, in addition to DP’s oppressive policies against the media and universities, led to 27 May coup which was carried out by junior rank military officers and spoiled the hierarchical chain within the Turkish military. Indeed, the 1960 military intervention essentially marked a turning point in Turkish political history. Although, the foundations of the regime remained the same, the way politics was carried out was changed. The intervention, as Türkkaya Ataöv claims, was “a revolution that shook but did not change Turkey’s political body”[9]. At the beginning, the coup aimed at putting an end to the increasingly oppressive and reactionary Menderes government. However, it soon became a movement that changed the social and political atmosphere of the country especially after the adoption of the liberal 1961 constitution.

Although 27 May coup was aimed to restrict political elite’s power by some state institutions (e.g. National Security Council, Constitutional Court, Senate), 1961 constitution is often accepted as the most liberal constitution of Turkey considering its providence for extensive basic rights and liberties for individuals as well as democratic actors including trade unions and other non-governmental organizations. 1961 constitution also established the State Planning Agency (Devlet Planlama Teşkilatı) to revive the statist development model that was harmed during the 1950’s under the rule of Democrat Party. Following the coup of 27 May 1960, the decade was a period of rapid change in many aspects. The 1961 constitution had a liberal and democratic content, which had never been seen in Turkey. Under the new constitution the citizens enjoyed a remarkable degree of freedom. A wider spectrum of political activity was tolerated. The new regime was to assume a social, democratic and secular character[10]. “Out of the new constitution’s 157 basic articles, 19 were devoted to social and economic rights and duties”[11]. The constitution contained guarantees of freedom of thought, expression, association and publication as well as other democratic freedoms. Citizens enjoyed more civil rights. The universities were granted greater autonomy; students were given the freedom to organize their own associations. Trade unions were given the right to strike and engage in collective bargaining and thus 27 May coup was considered as a revolution by many intellectuals. Against the dictatorial rule of Menderes, nearly all democratic figures in the country supported the coup. A bicameral system was created by 1961 constitution because of the distrust towards political elite. That is why by the introduction of Senate and Constitutional Court, the regime aimed at protecting itself against the abuses of politics.

1961 constitution’s constitution-making process was quite democratic except the non-presence of center-rightist side in the Assembly. All political parties except Democrat Party and all civil society organizations participated into constitution making process in the founding Assembly that is why a real good democratic product was achieved. However, the lack of DP and the presence of military’s National Unity Committee were important problems that overshadowed the success of 1961 constitution’s constitution-making process. Although 1961 constitution was a successful democratic monument, the rising violence and polarization in the country and the sudden rise of socialist movements in the country directed Turkish Armed Forces to declare a memorandum on 12 March 1971 and a technocratic government was found under the leadership of Nihat Erim. Between 1971 and 1973 some constitutional changes limiting the civil liberties were made. The government was also given the decree[12] power in order to increase the effectiveness of execution. The power of National Security Committee was also increased. However, these limitations did not solve the problem of civil violence and Turkey faced with another military coup on 12 September 1980 which was followed by 1982 constitution.

1982 constitution was prepared by the founding Assembly which was created by the National Security Council. Constitution-making process for 1982 constitution was scandalous since the civil side in the founding Assembly was very weak and the rope was in the hands of Kenan Evren and Turkish Armed Forces. 12 September regime banned all existing political parties that is why all political parties and nearly all civil society organizations did not have chance to contribute to 1982 constitution. 1982 constitution limited all political, social liberties and created a very authoritarian regime. The power of National Security Committee was increased again and the government was started to be expected extremely careful about the decisions of NSC. The powers of the President of the Republic (a place that was pre-arranged for Kenan Evren) was increased and a so-called democratic system which in fact works under the tutelage of Turkish Armed Forces was created.

Although we have still 1982 constitution, we should admit that the most of this constitution was changed in years and now we have a much more democratic regime. Now, I will focus on the changes that took place after 1982. First wave of democratization started in 1987 by the reduction of the voting age (from 21 to 20), the facilitation of making constitutional amendments and the acceptance of a referendum in order to remove the political bans of pre-12 September political elite. Turgut Özal was the leading force behind this democratization movement although he wanted people to refuse pre-12 September politicians by a referendum. Second wave of democratization took place in the True Path Party-Social Democratic Populist Party coalition period. Very important changes were made including the removal of bans for civil society organizations and syndicated to engage in political activities, the reduction of voting age to 18, removal of bans against establishing political parties and civil society organizations, making the closing down of civil society organizations much more difficult etc. Third wave of democratization took place between 1999-2002 during the three party coalition government (Democratic Left Party-Nationalist Action Party and Motherland Party) under the leadership of Bülent Ecevit. State Security Courts were abolished, capital punishment was removed, the power of National Security Committee was decreased, all civil liberties were granted in parallel with European Declaration of Human Rights, closing-down of parties was made more difficult etc. Fourth wave of democratization came in Justice and Development Party period. Turkish constitution was made more compatible with Copenhagen Criteria and European democratic standards in general.

Looking at all our constitutional history, we could say that Turkey has a strong tradition of constitutionalism starting from the 1876. However, what we notice that generally constitutions are prepared as reaction to previous governments who abused their political power. Moreover, constitution-making processes were often directed by the Turkish Armed Forces and not all segments were represented in founding Assemblies. Still, 1961 constitution shows that Turkey could develop its democracy by itself without the pressures coming from European Union of other international institutions. Today, we have important democratic problems such as the lack of intra-party democracy, the presence of parliamentary immunity, dependence of parliamentarians to their party leader and that is why practically the lack of the separation of powers between legislative and executive. All these problems should be discussed seriously and handled if Turkey wants to become a full member of EU and a more democratic country.

[10] Article 2 of the new constitution stated that “the Turkish Republic is a national, secular and social State under the rule of law, based on human rights and the fundamental principles set forth in the Preamble” (İsmet Giritli, “Fifty Years of Turkish Political Development1919-1969”, İstanbul: Fakülteler Matbaası, 1969, pg 168).